Opinion
No. 01-2552-CM.
March 15, 2002
MEMORANDUM AND ORDER
Plaintiff has applied for leave to file this action without payment of fees, costs, or security and has submitted an affidavit of financial status in support thereof (doc. 2). Plaintiff also requests appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) (doc. 3).
In Forma Pauperis
Section 1915(a) of Title 28 in the United States Code sets forth the circumstances under which an individual is allowed to bring proceedings in forma pauperis. That statute provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit . . . that the person is unable to pay such fees or give security therefor."
Proceeding in forma pauperis in a civil case "is a privilege, not a right — fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998), cert. denied, 526 U.S. 1008 (1999). The decision to grant or deny in forma pauperis status under section 1915 lies within the sound discretion of the trial court. Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999); Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); Lewis Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *8 (D.Kan. Apr. 9, 1997). This is especially true in civil cases for damages, where courts should grant the privilege "sparingly." Id. In denying such applications, however, a court must not act arbitrarily or deny the application on erroneous grounds. Id.
Plaintiff's affidavit of financial status indicates that he currently is employed and earns a monthly net salary of $1,600.00 and that his spouse currently is employed and earns a monthly net salary of $601.00. Plaintiff's affidavit further states that he and his wife have approximately $1,566.00 in monthly expenses. Based on this information, the Court finds Plaintiff has sufficient financial resources to pay the court's filing fee. See Buggs, 1997 WL 321289, at *8) (denying application to proceed in forma pauperis where net monthly income was approximately $1,500.00 and monthly expenses $1,115.92).
Appointment of Counsel
Although a plaintiff has no constitutional or statutory right to appointed counsel, the district court may, in its discretion, appoint counsel for a plaintiff in an employment discrimination action. Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1420-22 (10th Cir. 1992). Before counsel may be appointed, however, the "plaintiff must make affirmative showings of (1) financial inability to pay for counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination." Id. at 1421. In addition, "plaintiff's capacity to present the case without counsel should be considered in close cases as an aid in exercising discretion." Id. If a plaintiff's discrimination complaint appears legally sufficient on its face, "a court ordinarily should review the [Equal Employment Opportunity Commission ("EEOC")] investigative file" to help it determine whether the case has merit. Id. at 1422.
Upon review of Plaintiff's application, the Court finds Plaintiff sufficiently has demonstrated diligence in securing counsel on his own, the second factor. Plaintiff's papers, however, fail to satisfy either the first or the third factors. With regard to the first factor, Plaintiff has failed to make an affirmative showing of financial inability to pay, as shown in the preceding section. With regard to the third factor, the Court is unable — based upon the face of the Complaint and a review of the investigative file from the KHRC and EEOC attached to Plaintiff's Complaint — to make a preliminary determination that the allegations set forth have merit.
Based on this analysis, the Court finds the factors weigh against appointment of counsel here. Accordingly, Plaintiff's Motion will be denied.
Even if the circumstances were "close,"papers filed by Plaintiff with the Court indicate he is sufficiently capable of presenting his case without counsel.
Conclusion
For the foregoing reasons, it is hereby ordered that
(1) Plaintiff's Motion for Application for Leave to File Action Without Payment of Fees, Costs or Security (doc. 2) is hereby denied and Plaintiff is ordered to pay the $150 filing fee no later than April 5, 2002. Upon payment of the filing fee the clerk shall issue summons and deliver the same to Plaintiff for service pursuant to the requirements set forth in Rule 4 of the Federal Rules of Civil Procedure. Plaintiff shall be granted a sixty (60) day extension of time, up to and including May 20, 2002 in which to have the Summons and Complaint served upon Defendants in this matter; and
(2) Plaintiff's Motion for Appointment of Counsel (doc. 3) is denied.
IT IS SO ORDERED.